[2019] KEHC 3953 (KLR)
The court found that, based on the Affidavit of Service and supporting documents, the Defendants were properly served with Summons to Enter Appearance. However, exercising judicial discretion, the court allowed the Defendants' Statements of Defence filed out of time to remain on record, as the Plaintiff did not...
Source-derived case information.
- Citation
- [2019] KEHC 3953 (KLR)
- Parties
- Plaintiff: Joyce Mwikali Mutinda; Defendant: Kwetu Sacco Society Limited; Defendant: John Katama Nzioki
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 99 of 2016
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application Regarding Validity of Defence and Service of Summons
- Outcome
- Application allowed in part; Defendants' Statements of Defence deemed validly on record; each party to bear own costs.
- Judges
- OA Angote
- Legal Topics
- Service of Summons, Late Filing of Defence, Affidavit of Service, Exercise of Discretion, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joyce Mwikali Mutinda
Plaintiff
Kwetu Sacco Society Limited
Defendant
John Katama Nzioki
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application Regarding Validity of Defence and Service of Summons
Legal Issues
- 1 Whether the Defendants were properly served with Summons to Enter Appearance.
- 2 Whether the Defendants' Statements of Defence filed out of time should be deemed validly on record.
- 3 Whether the Plaintiff will suffer prejudice by the late filing of the Defences.
Ratio Decidendi
The court found that, based on the Affidavit of Service and supporting documents, the Defendants were properly served with Summons to Enter Appearance. However, exercising judicial discretion, the court allowed the Defendants' Statements of Defence filed out of time to remain on record, as the Plaintiff did not demonstrate any prejudice that could not be compensated by an award of costs. The court emphasized that the overriding objective is to facilitate the just, expeditious, and affordable resolution of disputes, and that striking out the Defence in these circumstances would not serve the interests of justice.
Court Disposition
Application allowed in part; Defendants' Statements of Defence deemed validly on record; each party to bear own costs.
Orders
- The 1st and 2nd Defendants’ Statements of Defence filed on 25th April, 2018 are deemed validly on record and served.
- Each party to pay his/its own costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 99 OF 2016
JOYCE MWIKALI MUTINDA..............................................................PLAINTIFF
VERSUS
KWETU SACCO SOCIETY LIMITED.....................................1ST DEFENDANT
JOHN KATAMA NZIOKI..........................................................2ND DEFENDANT
RULING
1. In the Notice of Motion dated 22nd October, 2018, the Defendants have sought for the following orders:
a.That the 1st and 2nd Defendants’ respective Statement of Defence filed in court on the 25th April, 2018 be and are hereby deemed to be validly on record and duly served.
b.That in the alternative to prayer 1 and 2 above, the suit against the 1st and 2nd Defendants be struck out with costs for failure by the Plaintiff to extract and serve Summons to Enter Appearance.
c.That the costs of this Application abide the outcome of the suit.
2. The Application is supported by the Affidavit of the Defendants’ advocate who has deponed that in view of the reliefs sought in the Plaint, no interlocutory Judgment could in law be validly entered; that the Judgment that was entered herein is a nullity in law; that the Plaintiff has never extracted Summons to Enter Appearance and that the long delay in extracting Summons is inconsistent with the mandatory provisions of Order 5 Rule 1(1) and (5) of the Civil Procedure Rules.
3. In response, the Plaintiff deponed that there was no interlocutory Judgment that was entered in this matter; that the matter is scheduled to come up for formal proof; that the Defendants did not file any Statement of Defence within time and that the Defendants have not properly invoked the relevant provisions of the law.
4. The Plaintiff finally deponed that the Defendants were served with the extracted Summons to Enter Appearance; that the Defendants are attempting to sneak in the record the Statements of Defence and that the Application should be dismissed. Both parties filed submissions which I have considered.
5. In his submissions, the Defendants’ advocate acknowledged that there was no interlocutory Judgment on record. According to counsel, the court should grant him prayer number 2 only. The said prayer reads as follows:
“2. That the 1st and 2nd Defendants’ respective Statement of Defence filed in court on the 25th April, 2018 be and are hereby deemed to be validly on record and duly served.”
6. This suit was commenced by way of a Plaint dated 2nd September, 2016 and filed on 5th September, 2016. Together with the Plaint, the Plaintiff filed an Application dated 2nd September, 2016 seeking for injunctive orders.
7. The record shows that the Defendants’ advocate filed a Notice of Appointment on 8th June, 2017. However, it was not until 25th April, 2018 that the Defendants filed a Defence.
8. The Defendants’ advocate has deponed that the late filing of the Defence was occasioned by the non-extraction of the Summons and that in fact, the Defendants have never been served with the Summons to Enter Appearance.
9. In response, the Plaintiff deponed that Summons to Enter Appearance were duly served on the Defendants. The Plaintiff annexed on her Affidavit the copy of the Summons dated 3rd October, 2016 together with the Affidavit of Service.
10. In the Affidavit of Service, the process-server deponed on how he served the 1st Defendant with the Summons to Enter Appearance on 2nd June, 2017. The Defendants did not seek the leave of the court to cross-examine the process-server on his Affidavit of Service. Indeed, the Defendants’ advocate could have only have filed the Notice of Appointment on 20th June,2017 because his clients had been served with the court documents herein.
11. Although the evidence before me shows that the Defendants were served with the Summons to Enter Appearance, I shall exercise my discretion in favour of the Defendants and allow the Defences that were filed out of time on record. This is because the Plaintiff has not shown the prejudice that will be occasioned with the late filing of the said Defences that cannot be compensated in costs, if at all.
12. For those reasons, I allow the Application dated 22nd October, 2018 as follows:
a.The 1st and 2nd Defendants’ Statements of Defences filed on 25th April, 2018 be and are hereby deemed to be validly on record and served.
b.Each party to pay his/its own costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 20TH DAY OF SEPTEMBER, 2019.
O.A. ANGOTE
JUDGE